PITTSBURGH – Counsel for a plaintiff who alleges she slipped on yogurt which had been dropped onto the floor at a Uniontown Wal-Mart store wants the department manager and loss prevention manager allegedly on duty at the time to appear for depositions.
A.N. (a minor, by and through Carissa Matty, her parent and natural guardian) initially filed suit in the Fayette County Court of Common Pleas on Dec. 3, 2020 versus Wal-Mart Stores, Inc. and Wal-Mart Real Estate Business Trust, of Bentonville, Ark.
“On Nov. 7, 2015, plaintiff was walking in a carefully and prudent way in the aisle/area where yogurt was sold when suddenly, and without warning. Plaintiff slipped on yogurt that had been spilled onto the floor. At all times relevant hereto, plaintiff acted with due care, attention, and regard for plaintiff’s own safety and well-being,” the suit said.
“Defendants were, or in the exercise of reasonable care should have been, aware that yogurt spilled onto the floor which was devoid of proper cautionary signage and clean-up for an unreasonably long time, more likely than not, could create a dangerous condition to business invitees in the store, such as plaintiff.”
The plaintiff alleged the store had actual knowledge of prior incidents wherein yogurt or other liquids were spilled on the floor in customer areas and, specifically, the area where plaintiff fell, and the unreasonably dangerous condition that such spills constitute.
“As a result of the slip, plaintiff sustained serious injuries, including but not limited to: Forefoot supinatus of the right lower extremity; Pes planus of the right lower extremity; Hallux abductovalgus of the right lower extremity; Salter-Harris fracture of right distal tibia; Scarring and permanent disfigurement; A limp which may be permanent in nature; Injury with damage to the bones, joints, ligaments, tendons, nerves, muscles and/or soft tissues including stiffness, loss of range of motion, soreness, and pain; Emotional pain and suffering, fear, shock, fright, embarrassment, mental anguish, anxiety and loss of well-being; and other severe and/or permanent injuries,” according to the lawsuit.
“Plaintiff has undergone numerous corrective surgeries to his/her right leg, ankle, and/or foot, has already incurred medical bills and expenses as a result of the treatment sustained, such to be borne by his/her parent on his/her behalf. Plaintiff will likely be required to undergo additional surgeries/treatment and will incur additional medical expenses, as he/she is soon reaching the age of majority. Therefore, plaintiff brings the instant action seeking an award of compensatory damages to the full extent allowed by applicable law.”
After the case was removed to the U.S. District Court for the Western District of Pennsylvania on Jan. 4, 2021, an answer in the matter was filed more than five months later on June 23, 2021, in which Wal-Mart denied liability for the subject incident and put forth 11 separate affirmative defenses.
“Plaintiff’s complaint fails to state a cause of action upon which relief can be granted as to Wal-Mart. Plaintiff’s claim is limited to, barred by, and subject to the Pennsylvania Comparative Negligence Act 42 Pa.C.S.A. Section 7102 et seq. and any presumptive non-negligence given plaintiff’s age at the time of the incident is a rebuttable presumption which will be established here. Wal-Mart pleads the affirmative defenses of assumption of the risk, comparative negligence, and contributory negligence,” the defenses read, in part.
“The actions and/or inactions of plaintiff was the sole cause or, in the alternative, the intervening and/or superseding cause of the incident and all alleged injuries and/or damages in the complaint. Plaintiff’s injuries and/or damages were pre-existing in nature and did not result from any alleged actions and/or inaction of Wal-Mart. Plaintiff failed to mitigate her injuries and/or damages.”
UPDATE
Plaintiff counsel filed a motion on May 3 to compel depositions of Terry Newland and Heather Brieg.
“Defendant’s initial disclosures identified Terry Newland as the Department Manager of this Walmart at the time of the incident and indicates that he may have personal and/or acquired knowledge and/or information regarding the events of Nov. 7, 2015, including his observations of the alleged spill and his conversations with plaintiff’s mother. It is believed that Mr. Newland may be the manager who took the incident report and interviewed employees/investigated this matter further. The defendant later identified Heather Brieg as being a loss prevention manager at this Walmart location as of Nov. 7, 2015. Plaintiff and defendant discussed taking the depositions of these individuals. However, the defendant indicated that neither of these individuals are current employees of Walmart and are unable to produce them for their depositions,” the motion stated.
“On or about March 22, 2022, Terry Newland and Heather Brieg were served with a subpoena and a notice of deposition which was to take place April 6, 2022 via Zoom. Neither party contacted plaintiff’s counsel at any point up until the start time of the deposition, and as such, the depositions were unable to be taken. Pursuant to Rule 30 of the Federal Rules of Civil Procedure, plaintiff is entitled to take the depositions of these individuals. Fact discovery in this matter ends June 10, 2022. Plaintiff will be prejudiced if she is unable to take depositions of these two individuals who, it is believed, have discoverable information about the incident at issue.”
The plaintiff seeks Newland and Brieg to appear for depositions within 14 days of a judicial order compelling them to do so.
For a count of negligence, the plaintiff is seeking damages, jointly and severally, compensatory damages in an amount in excess of the limits of compulsory arbitration, plus costs of suit, applicable interest, damages for delay and such other or additional relief as this Honorable Court may deem appropriate.
The plaintiff is represented by Noah P. Fardo, William F. Rogel and Jaclyn M. DiPaola of Flaherty Fardo Rogel & Amick, in Pittsburgh.
The defendant is represented by Rebecca Sember Izsak and Brook T. Dirlam of Thomas Thomas & Hafer, also in Pittsburgh.
U.S. District Court for the Western District of Pennsylvania case 2:21-cv-00010
Fayette County Court of Common Pleas case 1777 of 2020 GD
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com